A federal appeals court ruled in San Francisco today that a person accused of criminal conspiracy can be prosecuted in the court district from which a co-conspirator called him, even if the accused never set foot in that district.
The 9th U.S. Circuit Court of Appeals said Alejandro Gonzalez, who was convicted of cocaine conspiracy after being arrested in Modesto, “propelled” the scheme from Eastern to Northern California by negotiating a drug deal over the phone with someone in the Bay Area.
Gonzalez was prosecuted in federal court in San Francisco and was convicted last year of one count of conspiring to possess cocaine with intent to sell it and two counts of using a telephone in a drug crime.
He was sentenced by U.S. District Judge William Alsup to six and one-half years in prison.
A three-judge panel of appeals court unanimously upheld his conviction, rejecting his claim that the case should be dismissed because the crime didn’t take place in the federal court district where he was tried. Gonzalez said he never entered the San Francisco-based Northern California district.
Gonzalez received calls in October 2010 from a government informant in the Bay Area who was posing as a drug dealer and who agreed to buy five kilograms of cocaine for $85,000.
He was arrested in a shopping center parking lot in Modesto on Nov. 2, 2010, as he delivered the cocaine, hidden inside a stereo speaker in a box, to the informant and an undercover U.S. Drug Enforcement Administration agent.
Gonzalez argued in his appeal that holding the trial in San Francisco violated a federal constitutional requirement that a crime must be prosecuted in the state and district in it was committed.
The Northern California federal court district includes the Bay Area and the state’s northern coast. Modesto is in the Sacramento-based Eastern District.
The appeals court, citing previous court rulings, said that when a conspirator uses a telephone call to further a scheme, he moves “not only his voice but the scheme itself beyond his own physical location into that of the person with whom he is speaking.”
“By using those calls to negotiate the terms of a drug deal to be completed in the Eastern District of California, Gonzalez propelled the conspiracy to the Northern District of California,” wrote Judge Richard Tallman.
The panel said it didn’t matter that Gonzalez never set foot in the Northern District and did not initiate the calls.
“It was sufficient that in furtherance of the conspiracy, Gonzalez conducted communications with someone located in the Northern District of California,” the appeals court said.
The court upheld a similar ruling issued by Alsup before Gonzalez’s trial.
Julia Cheever, Bay City News